Page:Federal Reporter, 1st Series, Volume 10.djvu/333

 PBESTON V. WAIiSH. 821 �he is obliged to consult the governor and follow his advice. That in thia mat- ter he has advised with Hon. O. M. Boberts, governor, and bas been instructed by the governor net to issue any certiflcates for land to said Mercer and asso- ciates, and to those claiming by or tbrough or under them, and that he is advised and believes that it would be a breach of his officiai bond and a viola- tion of his officiai oath to issue any such certiflcates to complainant or the Texas Association. �(10) That William Preston, complainant, has no authority to stand in judg- ment in this suit; that the members of the Texas Association are the proper parties to this suit; and this suit is detective for want of such parties. �(11) That the settlers in the limits of Mercer colony are interested in the lands cTaimed, and that the bill is defective for the want of such parties. �(12) Pleading the statutes of limitations and staleness of demand, denying seerecy and fraud, but claiming open and notorious repudiation by the state of complainant's demands. �And the defendant denies conspiracy with the governor, denies hav- ing infringed the injunction in this case, and makes all the discovery that defendant finds possible in the premises. �To this answer a general replication is filed by the complainant. This statement of the pleadings, taken in connection with the full statement of the pleadings and facts as reported in the case of Han- cock y. Walsh, to which reference is made, shows the issues presented to this court. The evidence oSered and admitted on this hearing is bulky and voluminous, and cannot be recapitulated here, even if nec- essary. The following may be taken as the substance, and it will be found sufficient to understand and support the decree allowed in the case. �The complainant has established the contract between the republic, through Sam Houston, president, and Charles Fenton Mercer, and his associates, as alleged in the bills ; the entrance of Mercer upon the duties devolving on him under the contract; the organization of the Texas Association; the appoint- ment of surveyors and colonization agents ; the running of Unes and surveys ; the introduction of 119 familles within the flrst year of the grant ; the making of the survey of the boundary limits of the colony grant by April 1, 1845 ; the settlement of 1,256 familles within the limits of the colony prior to October 25, 1848; the appointment of Mercer as chief agent and trustee for the asso- ciation; the subsequent appointment of Hancock as chief agent; Hancock's death and the appointment of Preston, ratified by the association, as chief agent ; the entrance of the gentlemen upon the performance of their duties as agents of the association, and the activity displayed by them, respectively, in f urthering the objects and interests of the colony and the association ; the employment of counsel, the expenditure of money, and the persistent applica- tions made to thepolitical department of the state of Texas for relief. Further, the complainant hasshown that Mercer, as agent, made reports, as requiredby V.10,no.3— 21 ��� �